Ofelia Alvarado-Melendez v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

OFELIA ELIZABETH ALVARADO- No. 15-73035
MELENDEZ and GENESIS ELIZABETH
LOPEZ-ALVARADO, Agency Nos. A206-836-858
A206-836-859
Petitioners,

v. MEMORANDUM*

JEFFERSON B. SESSIONS, III, Attorney
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted February 14, 2017**

Before: GOODWIN, FARRIS and FERNANDEZ, Circuit Judges.

Ofelia Elizabeth Alvarado-Melendez and Genesis Elizabeth Lopez-

Alvarado, natives and citizens of El Salvador, petition for review of the Board of

Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judge’s order denying their motion to reopen removal proceedings conducted in

absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of

discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785,

791 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

The agency did not abuse its discretion in denying petitioners’ motion to

reopen for failure to establish exceptional circumstances, where they failed to

attend their hearing because of a misunderstanding with their attorney. See 8

C.F.R. §1003.23(b)(4)(ii); 8 U.S.C. §1229a(e)(1); Valencia-Fragoso v. INS, 321

F.3d 1204, 1205-06 (9th Cir. 2003) (no exceptional circumstances where petitioner

was late to her hearing due to confusion about the time).

To the extent petitioners contend that their former counsel was ineffective,

we lack jurisdiction to review this unexhausted claim. See Tijani v. Holder, 628

F.3d 1070, 1080 (9th Cir. 2010) (“We lack jurisdiction to review legal claims not

presented in an alien’s administrative proceedings before the BIA.”).

We also lack jurisdiction to review the agency’s determination not to reopen

sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d 818, 824-825 (9th Cir.

2011); cf. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).

PETITION FOR REVIEW DENIED in part; DISMISSED in part

2 15-73035